1996 (3) TMI 204 - AT - Central Excise

Issues:
Dispensation of duty and penalty demanded in the impugned order based on clubbing of clearances and clandestine removal of goods.

Analysis:
The applicants sought dispensation of duty of Rs. 32,33,669.28 and penalty of Rs. 5,00,000/- demanded in the impugned order. The duty was demanded on two counts: clubbing the clearances of 3 units and clandestine removal of goods without payment of duty. The Counsel argued that the three units operated independently, and their clearances should have been accounted for separately. He contended that the financial interplay between the units was minimal and did not support the conclusion of total financial accommodation. The Counsel also challenged the authenticity and relevance of the documents relied upon by the Department for duty demand. The lower authority's findings were based on seized production records and financial transactions among the units, leading to the duty demand. The Counsel argued for a reduction in the demand based on the units' independent operations and questioned the basis of the duty calculation.

The Counsel further argued against the clandestine removal of goods, highlighting discrepancies in the Department's reliance on leak test reports and quality control documents. He contended that the lower authority failed to address the authenticity and relevance of the quality control reports, which were photostat copies lacking proper identification. The Counsel emphasized the limited financial capacity of the appellants, especially as Small Scale Industry units, and their inability to meet the demanded pre-deposit. The Department's representative supported the lower authority's findings, asserting the close financial ties and interlocking operations of the units.

Upon review, the Tribunal observed that the clubbing of clearances was primarily based on financial interplay among the units, which appeared minimal compared to the value of goods cleared. The Tribunal found merit in the appellant's argument regarding the independent functioning of the units. Regarding clandestine removal of goods, the Tribunal found no flaw in the lower authority's reasoning based on leak test reports and internal records. However, the Tribunal noted the lack of detailed discussion on the authenticity of quality control reports and discrepancies in the period covered by leak test reports. Considering the appellants' financial constraints and the overall circumstances, the Tribunal ordered M/s. Asian Radiators to make a pre-deposit of Rs. 3.5 lakhs, with the balance of duty and penalty dispensed with pending compliance. The recovery of the remaining amount was stayed during the appeal process. Compliance was to be reported by a specified date.

In conclusion, the Tribunal addressed the issues of duty dispensation and penalty based on clubbed clearances and clandestine removal of goods, considering the arguments presented by both parties and the findings of the lower authority. The decision to require a partial pre-deposit reflected the Tribunal's assessment of the appellants' financial situation and the merits of the case, ensuring a fair balance between the interests of the parties involved.

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